England’s top magistrate has set a date for the retrial of former Sri Lankan defence attache, Brigadier Priyanka Fernando, for Public Order Act offences to redress the defence’s concerns over a number of procedural mistakes. Emma Arbuthnot gave defence counsel Nick Wayne less than an hour to contact the Brigadier to see if he was intending to appear in person at the next hearing set for half a day in May. However, it was not clear by the end of the hearing whether the Brigadier would return to London to testify or whether he would call any witnesses.

On 4 February 2018 the Brigadier was filmed outside the Sri Lankan High Commission in full military uniform making throat slitting gestures to the crowd of Tamil protestors. He later left the country after the video circulated causing uproar and went back to Sri Lanka where some praised him as a hero.

A private prosecution was mounted and the Brigadier was found guilty in January 2019 on two of the three pubic order charges. A further hearing in February this year examined the issue of whether the Brigadier enjoyed diplomatic immunity at the time of the incident – something that should have been dealt with at the outset, but wasn’t. Brigadier Fernando’s defence lawyer argued the throat slitting gesture was part of his client’s job description – a document that became public after being submitted into evidence in court.

Many were shocked to see the Brigadier’s role included monitoring the political activities of the Tamil community in the UK – something that contradicts the meta narrative of reconciliation and could bolster Tamil activists’ asylum claims in future. In the February hearing the magistrate made it clear that the threatening gestures could in no way be construed as part of the defence attache’s job and therefore he did not enjoy immunity for his actions.

Friday’s hearing was primarily to examine whether proper notice had been served to the Brigadier of the legal proceedings. Although the private prosecutors had sent a letter to his address in Sri Lanka through registered mail, there was also a letter from the Sri Lankan High Commission asking for 60 days’ notice to be given that was sent to Westminster Magistrate’s court in November 2018 but did not reach the magistrates or lawyers at the time. The result of this delay and other minor procedural mistakes by the court appear to have led the chief magistrate to opt for a retrial to ensure that the errors do not become grounds for appeal.

At the May hearing, three of the four witnesses opted to testify from behind a screen for their own protection, given the level of fear and intimidation. Counsel for the prosecutors, Peter Carter QC, told the chief magistrate that security officers had stopped a gentleman (identified as Amal Abeywardene) in the public gallery during the adjournment taking photos of the protestors outside the court. Mr Carter said he had been shown photos of the same man taking pictures of witnesses in this case outside the court building, adding that he had reason to believe he was connected to the High Commission.☐

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